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WZAQH v Minister for Immigration & Anor [2013] FCCA 182 Cover sheet and Orders:

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAQH v MINISTER FOR IMMIGRATION &

ANOR

[2013] FCCA 182

Catchwords:

MIGRATION – Judicial review – independent merits review decision –

whether error of law in finding of Iranian nationality – whether

unreasonableness in finding that the applicant not a Faili Kurd – whether error

of law in finding concerning well founded fear of persecution – whether error

of law by taking into account irrelevant considerations concerning person

allegedly owed protection obligations – whether denial of procedural fairness

concerning reasons for leaving Iran – whether jurisdictional error or error of

law by failure to take into account relevant considerations concerning person

allegedly owed protection obligations.

MIGRATION – Definition of “refugee” – two limbs – whether well-founded

fear of persecution required under both limbs.

PRACTICE AND PROCEDURE – Precedent – binding authority – judgments

of the Federal Court of Australia.

Legislation:

Constitution (Cth), s.75(v)

Migration Act 1958 (Cth), ss.36(2), (3) and (6), 91R, 189(3), 414, 420, 424,

476

Cases cited:

Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301;

[2011] FMCA 371

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986)

162 CLR 24

Minister for Immigration & Citizenship v SZMDS & Anor (2010) 240 CLR

611; [2010] HCA 16

Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185

CLR 259

Minister for Immigration & Multicultural Affairs v Savvin & Ors (2000) 98

FCR 168; [2000] FCA 478

Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206

CLR 323; [2001] HCA 30

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004)

78 ALJR 992; [2004] HCA 32

MZXAN v Minister for Immigration & Multicultural Affairs & Anor [2006]


FMCA 847

Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010)

243 CLR 391; [2010] HCA 41

Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR

515; [2009] FCAFC 42

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs &

Anor (2006) 228 CLR 152; [2006] HCA 63

SZOOR v Minister for Immigration & Citizenship & Anor (2012) 202 FCR 1;

[2012] FCAFC 58

Tontegode v Minister for Immigration & Multicultural Affairs [2002] FCAFC

131

VSAB & Anor v Minister for Immigration & Multicultural & Indigenous Affairs

& Anor [2006] FCA 239

Citizenship Law of Iran, articles 976 and 979

1951 Convention relating to the Status of Refugees as amended by the 1967

Protocol relating to the Status of Refugees, article 1A(2)

Applicant: WZAQH

First Respondent: MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent: JANET DUCKMANTON IN HER

CAPACITY AS INDEPENDENT MERITS

REVIEWER

File Number: PEG 16 of 2012

Judgment of: Judge Lucev

Hearing date: 16 August 2012

Date of Last Submission: 16 August 2012

Delivered at: Perth

Delivered on: 9 May 2013


REPRESENTATION

Counsel for the Applicant: Mr PCS van Hattem SC

Solicitors for the Applicant: CASE for Refugees

Counsel for the Respondents: Mr R Hooker

Solicitors for the Respondents: Australian Government Solicitor

DECLARATION AND ORDER

(1) The Court declares that the second respondent, in her capacity as

Independent Merits Reviewer, did not make her recommendation of

8 December 2011 according to law, in that she:

(a) failed to have regard to relevant considerations in determining the

issue of the applicant’s nationality;

(b) made a determination that the applicant had not himself claimed

to be a Faili Kurd in a manner which was unreasonable;

(c) failed to take into account a relevant consideration, namely that

the applicant claimed to be a Faili Kurd; and

(d) denied the applicant procedural fairness with respect to the

question of whether or not the applicant left Iran to avoid military

service.

(2) The Court orders that the first respondent, whether by himself or by his

servants, officers, delegates or agents, be restrained from relying upon

the second respondent’s recommendation of 8 December 2011.

WZAQH v Minister for Immigration & Anor [2013] FCCA 182 Reasons for Judgment: Page 1

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT PERTH

PEG 16 of 2012

WZAQH Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT

MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Amended on 23 May 2012, and again at hearing, this is an application,

under s.476 of the Migration Act 1958 (Cth),1 for a declaration and

injunction in relation to a decision2 of Janet Duckmanton in her

capacity as Independent Merits Reviewer,3 finding that the applicant

does not meet the criterion for a protection visa set out in s.36(2) of the

Migration Act, and recommending that the applicant not be recognised

as a person to whom Australia has protection obligations under the

1951 Convention relating to the Status of Refugees as amended by the

1967 Protocol relating to the Status of Refugees.4

1 “Migration Act”.

2 “IMR Recommendation”. The IMR Recommendation is at Court Book (“CB”) 139-161.

3 “IMR”.

4 Collectively the “Convention”.


Relief sought

2. The applicant seeks relief in the following terms:

(a) It is declared that the recommendation of the second

respondent in review case number WIT 077, dated 8

December 2011, that the Applicant not be recognised as a

person to whom Australia has protection obligations under

the 1951 Convention relating to the Status of Refugees, as

amended by the 1967 Protocol relating to the Status of

Refugees, was not made according to law.

(b) The first respondent be and is hereby restrained from relying

on the said recommendation or taking it into account.

Jurisdiction

3. The application, which seeks injunctive relief in this Court in relation

to the still to be completed decision-making process by the Minister in

relation to the IMR Recommendation, is within this Court’s jurisdiction

for relief in relation to a migration decision.5

The grounds of the application

4. There are six grounds of the application which allege that the IMR

made an error of law in relation to the following broad issues:

a) with respect to the applicant having Iranian nationality, when that

was not the case;

b) in finding that the applicant was not a Faili Kurd, a finding which

was unreasonable, or otherwise contrary to law;

c) in finding that the applicant did not have a well-founded fear of

persecution in Iran, that finding being based on a misconstruction

of the definition of “refugee”, and which was also unreasonable;

5 Migration Act, s.476(1); Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors

(2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan,

Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne,

Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration &

Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per

Nicholls FM.


d) in taking into account irrelevant considerations in determining

that the applicant was not a person to whom Australia owed

protection obligations, and in particular matters related to the

applicant’s reasons for leaving Iran, and the applicant and the

applicant’s mother’s experiences in Iran during the applicant’s

childhood;

e) in failing to take into account relevant considerations when

determining that the applicant was not a person to whom

Australia owed protection obligations, particularly that the

applicant was a Faili Kurd, and perceived to be stateless or as

having Iraqi nationality and anti-regime political opinions, and

whether the applicant was able to return to Iran, and, if not,

whether that unwillingness was owing to a well-founded fear of

persecution in Iran at the time the recommendation was made;

and

f) denying the applicant procedural fairness in relation to the

reasons the applicant allegedly left Iran, and specifically whether

it was to avoid his military service obligations.

5. Each ground is set out in full below together with the parties’

submissions and the Court’s consideration in relation to each ground.

Preliminary submissions – first limb or second limb or both

limbs

6. The applicant raised a preliminary issue related to the definition of

“refugee” under article 1A(2) of the Convention, which has two limbs,

and whether a well-founded fear of persecution was required under

both limbs.

7. Under the Convention, the term “refugee” applies to any person who:

… owing to a well-founded fear of being persecuted for reasons

of race, religion, nationality, membership of a particular social

group or political opinion, is outside the country of his nationality

and is unable or, owing to such fear, is unwilling to avail himself

of the protection of that country; or who, not having a nationality

and being outside the country of his former habitual residence is

unable or, owing to such fear, is unwilling to return to it.


Applicant’s submissions

8. The applicant submitted:

a) the definition of refugee has two limbs which, together, relate to

all people – those with a nationality, and those without;

b) the first limb relates to any person with a nationality. Such a

person comes within the definition if the person:

i) has a well-founded fear of being persecuted for reasons of

race, religion, nationality, membership of a particular social

group or political opinion;

ii) is outside the country of his nationality owing to that fear;

and

iii) is unable or, owing to such fear, is unwilling to avail himself

of the protection of that country;

c) the second limb relates to any person not having a nationality.

Such a person comes within the definition if the person:

i) is outside the country of his former habitual residence, and

ii) is either:

(A) unable to return to it, or,

(B) owing to a well-founded fear of being persecuted

for reasons of race, religion, nationality,

membership of a particular social group or political

opinion, unwilling to return to it;

d) under the second limb, a stateless person who is unable to return

to the country of his former habitual residence falls within the

definition, whether or not he has a fear of persecution;

e) despite the clear language of the definition, the Full Court of the

Federal Court decided in Minister for Immigration &


Multicultural Affairs v Savvin & Ors6 that a person must have a

well-founded fear of persecution to come within either limb; and

f) although the language of the definition suggests that it is

sufficient, under the second limb, that the applicant is a stateless

person with nowhere to go, it is acknowledged that, unless Savvin

is overruled, the Court is bound by Savvin, and the applicant must

be found to have a well-founded fear of persecution to be a

person to whom Australia owes the relevant protection

obligations.

9. Although questioning the correctness of the judgment in Savvin, the

applicant, quite properly, observed that it was not a matter for this

Court to determine, and simply reserved its position in relation to the

point.

Minister’s submissions

10. The Minister made no specific submissions directed to this issue,

doubtless because the applicant had accepted that the decision in

Savvin was binding upon this Court.

Consideration – preliminary submissions

11. The Federal Court is a court superior to this Court in the hierarchy of

Australian federal courts, and its judgments, whether by a single Judge

or by the Full Court, are binding on this Court where the same point is

in issue, and, accordingly, are to be followed by this Court.7

12. The applicant accepts that in Savvin the Full Court of the Federal Court

decided that a person must have a well-founded fear of persecution to

come within either limb of the definition of “refugee”. Savvin is

directly on point in relation to the issue raised by the applicant, as is

apparent from the first paragraph of the first of the judgments in the

Full Court in Savvin:

6 (2000) 98 FCR 168; [2000] FCA 478 (“Savvin”).

7 Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender,

Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ.


This appeal raises the question of whether a stateless person

presently unable to return to that person's country of former

habitual residence is entitled to the status of refugee, or whether

there is an additional requirement that the person have a well-

founded fear of being persecuted for reasons of race, religion,

nationality, membership of a political social group or political

opinion. That question depends on the proper construction of Art

1A(2) of the Convention Relating to the Status of Refugees 1951

done at Geneva on 28 July 1951 (the Convention).8

13. Each Judge of the Full Court of the Federal Court in Savvin held that

the definition of “refugee” in article 1A(2) of the Convention was to be

construed as including the requirement that a stateless person, being

outside the country of their former habitual residence, has a well-

founded fear of being persecuted for a Convention reason.9 Savvin was

accepted as correct and was followed by another Full Court of the

Federal Court in Tontegode v Minister for Immigration & Multicultural

Affairs.10

14. In the above circumstances, the Court is bound to apply the

construction of the definition of “refugee” in article 1A(2) of the

Convention adopted by the Full Court of the Federal Court in Savvin,

and followed by another Full Court in Tontegode, and will do so. For

that reason it is unnecessary to address any further submissions made

by the applicant in relation to the distinction between the first limb and

second limb of the definition of “refugee”.

Ground 1

15. Ground 1 is as follows:

1. The Second Respondent made an error of law in that her

recommendation that the Applicant was not a person to whom

Australian [sic] has protection obligations under the 1951

Convention [in] relation to the Status of Refugees and 1967

8 Savvin FCR at 169 per Spender J; FCAFC at para.1 per Spender J.

9 Savvin FCR at 170 per Spender J, 173 per Drummond J and 175-176, 196 and 203 per Katz J; FCAFC

at para.8 per Spender J, para.23 per Drummond J and paras.35, 131 and 163 per Katz J. 10

[2002] FCAFC 131 at para.5 per Beaumont, Carr and Sackville (a case concerning a person who

travelled on an alien’s passport issued by the Republic of Latvia, and who was accepted as a stateless

person by the Tribunal, but whose country of former habitual residence was for the purposes of the

Convention found to be Latvia) (“Tontegode”). See too MZXAN v Minister for Immigration &

Multicultural Affairs & Anor [2006] FMCA 847 where Savvin was cited without disapproval at para.27

per Riethmuller FM.


Protocol relating to the Status of Refugees (the Refugees

Convention) was based on the Applicant having Iranian

nationality, when this was not the case.

Particulars

1.1 In finding that the Applicant had Iranian nationality, the

Second Respondent applied the wrong test, namely, that there was

a presumption that the Applicant had Iranian nationality and the

onus was on the Applicant to rebut it;

1.2 The Second Respondent’s finding that the Applicant had

Iranian nationality was contrary to law, namely s 36(6) of the

Migration Act 1958 (Cth):

1.3 For the purpose of applying Article 1A(2) of the Refugees

Convention to s 36(2) of the Migration Act, the Second

Respondent should have found, having regard to s 36(6) of the

Migration Act and Articles 976 and 979 of the Citizenship Law of

Iran, that the Applicant was a person not having a nationality.


16. In relation to ground 1 the applicant submits that:

a) the question of nationality is critical;

b) if the applicant is to be treated as having a particular nationality, it

must be because he has that nationality within the meaning of

article 1A(2) of the Convention;

c) nationality must be determined under the domestic law of the

country of putative nationality;11

d) the IMR stated that she was not satisfied that the applicant was

not an Iranian citizen.12

Eliminating the double negative, the IMR

must be taken to have found that the applicant had Iranian

nationality;

e) in doing so the IMR fell into error in two respects:

11

Citing VSAB & Anor v Minister for Immigration & Multicultural & Indigenous Affair & Anor

[2006] FCA 239 at paras.48-53 per Weinberg J (“VSAB”); Migration Act s.36(6). 12

CB 158-159 at paras.49 and 52.


i) firstly, the IMR approached the issue as if there were a

presumption that the applicant had Iranian nationality, and

the onus was on him to rebut that presumption by adducing

evidence to prove that he did not. The correct test is whether

the evidence established, on the balance of probabilities, that

the applicable criteria for having a particular nationality

were satisfied in relation to the applicant. The IMR applied

the wrong test and thereby made an error of law; and

ii) secondly, the IMR, having identified the criteria she

considered to be applicable, misapplied those criteria to the

evidence;

f) the only criteria of nationality referred to by the IMR were those

contained in articles 976 and 979 of the Citizenship Law of Iran;13

g) Iranian nationality is apparently acquired by a person, under

articles 976 and 979 of the Citizenship Law of Iran, if three

criteria are satisfied:

i) the person was born in Iran;

ii) the person was born to a father of foreign nationality who

has lived in Iran for over 5 years; and

iii) the person has resided for one year in Iran immediately after

turning 18;

h) the IMR did not consider any other basis on which the applicant

might be found to have Iranian nationality. By confining her

consideration to the stated effect of articles 976 and 979 of the

Citizenship Law of Iran, the IMR must be taken to have

considered that to be the only applicable basis for determining the

applicant’s nationality;

i) it is not controversial that the applicant was born in Iran. The first

criterion was therefore satisfied;

j) the applicant’s father was born in Iran. The applicant’s paternal

grandfather was born in Iraq, but there is no evidence about his

13

CB 148 at para.32.


nationality (if any), or whether he ever lived in Iran. The

applicant claims that his father was a Faili Kurd without

nationality, who applied unsuccessfully for Iranian citizenship

before his death in or about 2001;

k) it appears that the applicant’s father probably lived in Iran for

over 5 years after the applicant was born. There is no evidence as

to how long he lived in Iran before the applicant was born.

Arguably, the period of residence before the birth is the relevant

period. If that is correct, there is no evidentiary basis for finding

that the second criterion was satisfied;

l) the applicant attained the age of 18 on 22 February 2010, left Iran

in October 2010, and was detained at Christmas Island under

s.189(3) of the Migration Act on 21 October 2010. The applicant

therefore did not reside for one year in Iran immediately after

turning 18. The third criterion, which was not expressly

considered by the IMR, was not satisfied;

m) it follows that if the applicant’s nationality is to be determined by

reference to the criteria in articles 976 and 979 of the Citizenship

Law of Iran, the IMR was mistaken in her finding that the

applicant has Iranian nationality, because there was no evidentiary

basis to satisfy one, and arguably two, of the three criteria;

n) in this respect the IMR asked herself the wrong question –

whether the applicant could obtain Iranian nationality by

remaining in Iran, rather than whether the applicant had obtained

Iranian nationality before he arrived at Christmas Island. This

error is also apparent,14

where the IMR shows her interest in the

possibility of the applicant becoming, rather than being, an

Iranian citizen, and, where the reference is to “whether he could

obtain” particular citizenship;15

o) in addition, the IMR devoted considerable attention to the

nationality of the applicant’s mother, her brothers and her

parents,16

which are all irrelevant to the applicable criteria;

14

CB 146 at para.23. 15

CB 147 at para.27. 16

CB 157-158 and 160 at paras.47, 48 and 55.


p) further, the IMR treated the circumstances of the applicant’s

childhood and positive childhood experiences as incompatible

with his claim to have no nationality.17

This was irrelevant to the

applicable criteria, and was consistent with the applicant’s mother

having Iranian nationality;

q) if the IMR considered that the applicant’s father was not Iranian,

she should have addressed both of the further criteria, namely,

how long the father had lived in Iran before the applicant’s birth,

and how long the applicant had resided in Iran immediately after

his 18th

birthday. She addressed neither and thereby failed to take

relevant considerations into account;

r) if the IMR considered the applicant’s father had Iranian

nationality, she should have identified the criteria to be applied in

determining the applicant’s nationality, and applied them to the

evidence. She omitted to do so and thereby failed to take relevant

considerations into account;

s) the IMR Recommendation was, for that reason alone, not made

according to law; and

t) having found that the applicant had Iranian nationality, the IMR

should have addressed the issues which arose under the first limb

of the definition, namely, whether the applicant:

i) had a well-founded fear of being persecuted for reasons of

race, religion, nationality, membership of a particular social

group or political opinion; and

ii) was outside the country of his nationality owing to that fear;

and

iii) was unable or, owing to such fear, was unwilling to avail

himself of the protection of that country.


17. The Minister submits that:

17

CB 158-159 at para.49.


a) the analysis of relevant materials concerning citizenship in Iran

was one that was fairly open to the IMR. Just as the Refugee

Review Tribunal,18

where it is seized of jurisdiction to review a

RRT-reviewable decision under s.414 of the Migration Act is not

bound by technicalities, legal forms or the rules of evidence and

may get any information that it considers relevant,19

an IMR

acting on an engagement on behalf of the Minister, is likewise not

bound and is constrained only by the principles of law enunciated

in Plaintiff M61; and

b) the IMR’s conclusion on the applicant’s Iranian nationality was

fairly based on the entirety of information before the IMR,

assessed in light of the applicant’s unsatisfactory credibility.

Contrary to ground 1, the IMR did not apply an incorrect test or

misapply s.36(6) of the Migration Act and, even if she did, such

an error does not justify interference on judicial review.

Consideration

18. Section 36(2), (3) and (6) of the Migration Act provide as follows:

(2) A criterion for a protection visa is that the applicant for the

visa is:

(a) a non-citizen in Australia in respect of whom the

Minister is satisfied Australia has protection obligations under

the Refugees Convention as amended by the Refugees Protocol;

or

(aa) a non-citizen in Australia (other than a non-

citizen mentioned in paragraph (a)) in respect of whom the

Minister is satisfied Australia has protection obligations because

the Minister has substantial grounds for believing that, as a

necessary and foreseeable consequence of the non-citizen being

removed from Australia to a receiving country, there is a real risk

that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of

the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

18

“RRT”. 19

Migration Act, ss.420, 424.

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#visa


http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#non-citizen

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#refugees_convention

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#refugees_protocol





http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#remove

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#receiving_country

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#receiving_country


http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#significant_harm

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#significant_harm


http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#member_of_the_same_family_unit




(ii) holds a protection visa; or

(c) a non-citizen in Australia who is a member of

the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa.

(3) Australia is taken not to have protection obligations in

respect of a non-citizen who has not taken all possible steps to

avail himself or herself of a right to enter and reside in, whether

temporarily or permanently and however that right arose or is

expressed, any country apart from Australia, including countries

of which the non-citizen is a national.

(6) For the purposes of subsection (3), the question of whether a

non-citizen is a national of a particular country must be

determined solely by reference to the law of that country.

19. The reliance on s.36(6) of the Migration Act by the applicant is

misplaced. Section 36(6) of the Migration Act has a limited field of

operation, operating only in the circumstances prescribed by s.36(3) of

the Migration Act, which has no application to these proceedings. In

any event, s.36(6) of the Migration Act does not necessarily assist the

applicant because the necessity to specify that in the circumstances

prescribed by s.36(3) of the Migration Act the question of nationality

“must be determined solely by reference to the law” of the particular

country concerned implies that in other circumstances where

nationality needs to be determined under the Migration Act nationality

might be determined by reference to matters other than the law of the

particular country solely. It does not, however, mean that otherwise

under the Migration Act the citizenship law of a particular country

would not be a relevant consideration.

20. In VSAB the Federal Court dealt with the determination of the

derivative nationality of a person who had been born in one country,

but was living in another country, the Former Yugoslav Republic of

Macedonia20

in which the person had obtained a passport, ostensibly by

bribery. The RRT had determined that the person was a national of

FYROM, and had done so on a number of bases, including Department

20

“FYROM”.








http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5.html#enter




of Foreign Affairs and Trade21

information as to the requirements for

the acquisition of FYROM citizenship, but also on the basis of a

number of factors related to the applicant personally. In particular, the

RRT set out advice from DFAT which indicated that in order to acquire

FYROM citizenship a person was required to have 15 years residence

or three years marriage, and must provide a medical certificate, a

certificate of fluency in the Macedonian language, confirmation of no

criminal record, and proof of residence. The RRT noted that the

applicant had been married for seven years, spoke Macedonian and that

his application form stated that he had no criminal record. The

applicant also had children who were Macedonian nationals, owned

and operated his business from FYROM without difficulty, and had

been issued with an FYROM passport, which he had used without

hindrance to frequently depart and re-enter FYROM, using that

passport.22

21. In VSAB it was submitted that the RRT was “required, as a matter of

law, and as a matter of irreducible evidentiary standards, to acquaint

itself with the domestic law of FYROM regarding acquisition of

nationality, whether through the test of the relevant statute, expert

evidence, or scholarly works.”23

The RRT had not done so, but insofar

as it had had regard to the domestic law of FYROM had relied upon

DFAT’s exposition of that law. The applicant argued that in a case of

derivative acquisition of nationality, which VSAB was because the

applicant was a national of another country, by original acquisition,

that is by birth, it was necessary to have regard to the domestic law of

the country in question governing nationality or citizenship.24

The

Federal Court observed that:

a) questions of nationality are generally determined in accordance

with the municipal laws of the State concerned;25

and

b) the question whether the person was a national of FYROM was

effectively answered by asking whether he was a citizen of

21

“DFAT”. 22

VSAB at paras.8 and 11 per Weinberg J. 23

VSAB at para.18 per Weinberg J. 24

VSAB at paras.25-26 per Weinberg J. 25

VSAB at para.49 per Weinberg J.


FYROM, which had to be determined in accordance with the

domestic law of FYROM regarding such matters.26

22. The Federal Court did not agree with the suggestion that the RRT could

only act upon direct evidence of the relevant law of a foreign country,

and noted that:

Evidence which bears rationally upon the issue in question, in

this case the domestic law of FYROM regarding acquisition of

nationality, whether it be based on the text of a FYROM statute,

the views of an expert in FYROM law, scholarly works upon the

subject, or whether it be based on a series of primary facts that

lead to an inference as to the requirements of that domestic law, is

nonetheless still evidence. If there is a question of fact to be

resolved, such as whether a particular person is a national of a

particular State, there is no reason, from the point of view of

judicial review, why one type of evidence should be preferred to

another.27

23. The Federal Court went on to find that the RRT was entitled to

determine derivative acquisition of nationality by having regard to the

DFAT information referred to in the RRT’s reasons for decision,28

and

finally observed that:

If it cannot be said that there was “no evidence” to support the

Tribunal’s finding that the husband was a FYROM national, the

challenge to the sufficiency of that evidence goes nowhere. The

fact that others might not have come to the same conclusion as

the Tribunal did regarding this issue, equally does not

demonstrate jurisdictional error.29

24. The applicant asserts that because the IMR has only referred to articles

976 and 979 of the Citizenship Law of Iran, the IMR must be taken to

have considered that to be the only applicable basis for determining the

applicant’s nationality. The reference to articles 976 and 979 of the

Citizenship Law of Iran appeared in the first paragraph of the country

information cited by the IMR.

25. What is in dispute in this case is the effect of articles 976 and 979 of

the Citizenship Law of Iran. It is relevant to note that at the time the

26




VSAB at para.60 per Weinberg J.


country information was set out in the IMR Recommendation the IMR

had not made any factual conclusions as to the nationality or

statelessness of the applicant’s father, it being alleged by the applicant

that his father was also stateless, even though the father, like his three

brothers and five sisters, had been born in Iran.30

The applicant claimed

that his father was not an Iranian citizen, but the applicant also claimed

that his father was never an Iraqi citizen.31

The IMR was therefore

dealing with a situation where, at least, the applicant claimed the father

was stateless, was not an Iranian citizen, but there was some possibility

that he was a foreign citizen, although, at least insofar as Iraq was

concerned, this was disclaimed by the applicant.

26. Articles 976 and 979 of the Citizenship Law of Iran only apply where a

person is born in Iran, as the applicant was, “to a father of foreign

nationality”. There was a finding of fact by the IMR that he was not

satisfied that the applicant’s father was stateless. There was no finding

that the father, born in Iran, was a national of a country other than Iran.

In those circumstances it cannot be that the IMR considered the issue

of the applicant’s citizenship against articles 976 and 979 because there

was no conclusion that the applicant’s father was “of foreign

nationality”, that is, of a nationality other than Iranian. It is fair to

observe that the IMR Recommendation is in this regard very

awkwardly expressed, but read as a whole and having regard to the

usual invocations derived from the judgment of the High Court in

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors32

the only reasonable conclusion available on a proper reading of the

IMR Recommendation is that the IMR considered that the applicant’s

father was not stateless, and not “of foreign nationality”. In those

circumstances, articles 976 and 979 of the Citizenship Law of Iran did

not apply, and there was, therefore, no reason for the IMR to further

consider articles 976 and 979 of the Citizenship Law of Iran because

the applicant’s father was not a foreign national. Consistent with that,

articles 976 and 979 of the Citizenship Law of Iran were not further

considered by the IMR in the IMR Recommendation’s findings and

reasons.33

30

CB 145-146 at para.19. 31

CB 146 at para.23. 32

(1996) 185 CLR 259 (“Wu Shan Liang”). 33

CB 157-161 at paras.43-61.


27. Having regard to the fact that articles 976 and 979 of the Citizenship

Law of Iran did not apply was there adequate evidence to enable the

IMR to conclude that the applicant was an Iranian citizen? The IMR

had regard to the applicant’s birthplace in Iran, and the place of birth of

his father, and his father’s eight siblings, all born in the same place in

Iran, and the place of birth of his maternal family, again who all appear

to have been born in Iran, although having lived at some time in Iraq,

before returning to Iran. That, combined with the circumstances of the

applicant’s birth (in an Iranian hospital), his twelve years of schooling,

and what was described as “his unproblematic residence in the same

house in Ilam for all of his life in Iran” and the “unproblematic

residence of his paternal relatives in a village close to … [the village

where his father was born] (to which his mother has recently

located),34

also assisted in satisfying the IMR that the applicant was an

Iranian citizen. That was further assisted by the fact that the applicant

had not had any problems with the Basij, that apart from working with

his Iranian citizen uncle he had never otherwise attempted to find

work, and that the time had arrived at which he would be expected to

complete two years compulsory military service if he was an Iranian

citizen.35

In the Court’s view, these might all be relevant considerations

in determining citizenship, subject to the relevant terms of the

municipal laws of Iran.

28. The applicant specifically submits that the IMR ought to have

determined what criteria under the municipal law of Iran might have

applied to the applicant, and applied those criteria, and that the failure

to do so is a failure to have regard to a relevant consideration.

29. The evidence establishes that there is a municipal law of Iran, namely

the Citizenship Law of Iran, which deals with citizenship. Further,

there is country information cited by the IMR36

which indicates that

760 persons from the province from which the applicant (and his

father) were from, and were indeed born in, “were able to obtain

Iranian citizenship after a complicated process”.37

Whether or not that

process was under the Citizenship Law of Iran, or some other

legislative or quasi-legislative process, is not explored further in the

34

CB 158-159 at para.49. 35

CB 159 at paras.50-52. 36

CB 151 at para.38. 37

CB 151 at para.38.


country information, or otherwise, in the IMR Recommendation.

Rather than determining whether the municipal law dealing with

citizenship applied to the applicant’s circumstances, or not, or whether

there was some other form of legislative or quasi-legislative process

which might apply to enable the applicant to be eligible to be, or be, an

Iranian citizen, the IMR moved straight to a consideration of

information personal to the applicant in order to determine Iranian

nationality, without any regard to the relevant municipal law, or any

other legislative or quasi-legislative process. Any such municipal law

or legislative or quasi-legislative process, was a relevant consideration

in assisting the IMR to determine whether the applicant was, or equally

important in the circumstances, was not, either an Iranian citizen, or

eligible to be an Iranian citizen. Was, for example, the applicant

eligible for Iranian citizenship under the “complicated process” by

which 760 people from the applicant’s province had been granted

citizenship? Given the country information which is set out in the IMR

Recommendation, the mere fact that a person (and particularly

someone claiming to be a Faili Kurd) is born in Iran, and their relatives

are born in Iran, and that they went to school and have obtained

employment in Iran, are not factors which preclude the necessity to

have regard to the most relevant consideration, namely the municipal

law or any applicable legislative or quasi-legislative process, for the

purpose of determining, whether under the applicable Iranian law, the

applicant might, or might not, be, or might, or might, or might not, be

eligible to be, an Iranian citizen.

30. In the circumstances, the Court is of the view that the IMR failed to

have regard to a relevant consideration or considerations, namely the

totality of the Citizenship Law of Iran, and the legislative or quasi-

legislative process by which some persons from Ilam Province had

obtained Iranian citizenship. The failure to have regard to a relevant

consideration or considerations is a jurisdictional or legal error giving

rise to a right to relief of the type sought by the applicant in these

proceedings.

31. Ground 1 is therefore made out.


Ground 2


2. The Second Respondent made an error of law in that her

finding that the Applicant was not a Faili Kurd was so

unreasonable that no reasonable person could have made that

finding, or it was otherwise contrary to law.


33. The applicant submitted as follows:

a) the IMR’s approach to the question of race is intertwined, and

confused, with the issue of nationality. They are separate issues;

b) the IMR accepted that the applicant is of Kurdish ethnicity and is

a Muslim, but did not accept that he is a Faili Kurd.38

The IMR

appears to have found that stating his religion as “Islam” was

incompatible or inconsistent with being a Faili Kurd. The IMR

does not give any other basis for refusing to accept the evidence

that the applicant is a Faili Kurd. The stated reason is

incomprehensible. The finding was so unreasonable that no

reasonable person could have made it;

c) it is noted that Faili Kurds are Shiite Muslims, not Sunni

Muslims,39 but there is no evidentiary basis for treating “Islam”

other than as synonymous with “Muslim”; and

d) further, the RSA Record notes,40 that the applicant claims “that his

religion is Shia Muslim and his ethnicity is Kurdish Faili”. The

IMR was under the erroneous impression that the applicant had

not claimed to be a Faili Kurd.



38

CB 157 at para.45. 39

CB 151 at para.38. 40

CB 84 at para.2


a) the IMR did not err in reaching her conclusion that the applicant

was not a Faili Kurd; and

b) the doctrine of Wednesbury unreasonableness does not assist the

applicant and the conclusion is not in any way “otherwise

contrary to law”.

Consideration – ground 2

35. In order to properly consider this ground it is necessary to review some

of the factual material related to the applicant’s claims in more detail.

36. On the applicant’s arrival on 21 October 2010 the bio-data taken by an

officer of the Department indicated that the applicant gave his religion

as Islam and his ethnic group as “Kurd Faili”.41

37. In the entry interview on 31 October 2010 the applicant is recorded as

giving his religion as Islam and his ethnic group as “Kurd”.42

38. In a document headed “IAAAS Interview Cover Sheet”, dated 5

January 2010, but obviously intended to be 2011, the applicant’s

ethnicity is said to be “Faili Kurd” and his religion is listed as “Shia”.43

39. The Applicants Statutory Declaration of 6 January 201144

expressly

states that the applicant is “a faili Kurd”.45

40. The Refugee Status Assessment Record46

:

a) notes that the applicant “claims to be a stateless Faili Kurd”;47

b) notes that the applicant “claims that his ethnic group is ‘Faili

Kurd’ and his religion is Shia Muslim”;48

c) repeats the applicant’s claim to be Shia Muslim and of Kurdish

Faili ethnicity under the applicant’s history;49

41

CB 2. 42

CB 56. 43

CB 13. 44

CB 14-17 (“January 2011 Statutory Declaration”). 45

CB 16 at para.20. 46

“RSA Record”. The RSA Record is at CB 83-96. 47

CB 83. 48

CB 83. 49

CB 84.


d) notes that the applicant spoke Kurdish Faili;50

e) in considering the harm feared for a Convention reason, notes that

the applicant asserted that he would face discrimination and

denial of civil rights services “because he is a Faili Kurd”;

f) finds that the “ground of race is the essential and significant

reason for the harm feared”;51

and

g) notes that the applicant claimed to be stateless and that the RSA

officer considered that stateless Faili Kurds could constitute a

particular social group, and that that was an essential and

significant reason for the harm feared in the applicant’s claim.52

41. The applicant’s written submissions to the IMR53

are replete with

references to the applicant being a Faili Kurd, and the nature of

discrimination or harm alleged to be rendered to Faili Kurds in Iran. In

relation to the applicant’s claims the Applicant’s Written IMR

Submissions asserted that:

a) the applicant was “a stateless Faili Kurd, previously resident in

Iran”;54

b) that he feared “ongoing persecution in the form of severe

discrimination on the basis of his race (Faili Kurd)”;55

and

c) it is arguable that he did not have a “White Card” (a form of

identity documentation) “because he is from the particular social

group of stateless Faili Kurds”, a matter which is relevant to

whether or not he may suffer future harm or punishment from the

para-military Basij.56

42. The Applicant’s Written IMR Submissions set out considerable

independent country information related to the persecution of Kurds in

Iran, as it was asserted that the persecution which Faili Kurds are

subject to must also be considered within the broader context of

50

CB 88. 51

CB 89. 52

CB 89. 53

CB 107-135 (“Applicant’s Written IMR Submissions”). 54

CB 108. 55

CB 108. 56

CB 109.


persecution of Iranian Kurds.57

In any event, however, the independent

country information cited by the applicant expressly dealt with the

alleged persecution of Faili Kurds in Iran, in the following contexts:

a) because Faili Kurds had become increasingly vocal participants in

Iraqi politics, arguing for an autonomous Kurdish region within

Iraq, thereby giving rise to a suspicion on the part of the Iranian

regime that Faili Kurds had a desire for political autonomy in

Iran;58

b) that the Basij persecuted Faili Kurds for reason of their

nationality regardless of State policy because the Basij were

decentralised, undisciplined and organisationally independent

from Iranian State institutions;59

and

c) Iranian authorities were easily able to identify stateless Faili

Kurds due to their lack of any official documentation, and Faili

Kurds were subject to violent persecution due to their imputed

support for Kurdish nationalism, imputed to them by reason of

their Kurdish identity.60

43. The Applicant’s Written IMR Submissions went on to set out specific

information concerning the persecution of Faili Kurds in Iran,

including alleged discriminatory practices in relation to education,

health care, employment, and movement within Iran.61

The Applicant’s

Written IMR Submissions also dealt with the inability of Faili Kurds to

actually apply for Iranian citizenship, even when their mothers were

born in Iran.62

44. In addressing the criteria in the Convention and s.36(2) of the

Migration Act the applicant asserted that:

a) he was a stateless Faili Kurd;63

b) the Iranian authorities engaged in abuse and discrimination

against Faili Kurds;

57

CB 109. 58

CB 113-114. 59

CB 115. 60

CB 116. 61

CB 116-120. 62

CB 120-121. 63

CB 125.


c) he was at serious risk of harm;64

and

d) the Iranian authorities generally targeted ethnic minorities,

including Faili Kurds, and that that occurred throughout the

country and, therefore, relocation within Iran was not possible.65

45. Against the above background the IMR conducted the IMR Interview

and wrote the IMR Recommendation. In conducting the review the

IMR noted that:

This independent review will consider afresh all claims for

protection as they relate to the Refugees Convention, taking into

account all available information, including information

available to the Refugee Status Assessment officer in reaching the

unfavourable Refugee Status Assessment, information provided by

or on behalf of the claimant and any additional information the

independent reviewer may consider relevant.66

46. The claims from the Applicant’s Written IMR Submissions were set out

in part in the IMR Recommendation, including the applicant’s claim to

be a stateless Faili Kurd who feared ongoing persecution in the form of

severe discrimination on the basis of his race, and the fact that it was

arguable that he had no documentation because he was a Faili Kurd.67

47. The IMR also noted:

a) the entry interview where the applicant “is reported as stating

that … he is of Kurdish ethnicity; his religion is Islam”;68

and

b) the January 2011 Statutory Declaration, but does not specifically

note the statement that the applicant made in writing that he is “a

faili Kurd”.69

48. The country information set out in the IMR Recommendation deals at

great length with the position of Faili Kurds in both Iraq and Iran.

Numerous reports by reputable international organisations are cited, as

well as DFAT information in relation to the position of Faili Kurds,

and:

64

CB 132-133. 65

CB 134. 66

CB 140 at para.4. 67

CB 141-142 at para.10. 68

CB 142 at para.10. 69

CB 16 at para.20.


a) their treatment in both Iraq and Iran;

b) their treatment in Iran by the Basij; and

c) the fact that some Faili Kurds of Iraqi origin living in Iran do not

have documentation and are not registered with the Iranian

authorities.70

49. It is against the above background that the IMR in the first paragraph

of the IMR Recommendation under the heading “Findings And

Reasons” says that:

The essence of the claimant’s claim for refugee status is that he

has a well-founded fear of persecution in Iran because he is a

Stateless Kurd.71

50. Two paragraphs further on the following paragraph, critical to the

applicant’s argument, appears:

I accept that the claimant was born in Ilam, Iran, 22/02/1999 [sic

– 1992]; is of Kurdish ethnicity; and is a Muslim. I also accept

that Iran in his country of former habitual residence and that he

has no lawful right to reside in any other country. However, as the

claimant has not himself claimed to be a Faili Kurd (and in his

Entry Interview, he stated his religion to be “Islam”) I am not

satisfied that he is a Faili Kurd.72

51. In Minister for Immigration & Multicultural & Indigenous Affairs v

SGLB73

it was said that:

… the critical question is whether the determination was

irrational, illogical and not based on findings or inferences of

fact supported by logical grounds. If the decision did display

these defects, it will be no answer that the determination was

reached in good faith.74

52. In the High Court in Minister for Immigration & Citizenship v SZMDS

& Anor75

the plurality majority Justices accepted a submission that:

70

CB 148-153 at paras.33-39 and CB 154-156 at para.41. 71

CB 147 at para.43. 72

CB 157 at para.45. 73

(2004) 78 ALJR 992; [2004] HCA 32 (“SGLB”). 74

SGLB ALJR at 998 per Gummow and Hayne JJ; HCA at para.38 per Gummow and Hayne JJ. 75

(2010) 240 CLR 611; [2010] HCA 16 (“SZMDS”).


…not every instance of illogicality or irrationality in reasoning

could give rise to jurisdictional error, … if illogicality or

irrationality occurs at the point of satisfaction (for the purposes

of s 65 of the [Migration] Act) then this is a jurisdictional fact

and a jurisdictional error is established.76

53. Those plurality Justices went on to say that:

…illogicality” or “irrationality” sufficient to give rise to

jurisdictional error must mean the decision to which the Tribunal

came, in relation to the state of satisfaction required under s 65,

is one at which no rational or logical decision maker could arrive

on the same evidence.77

54. Importantly, the above observations were caveated by the following

observation of the same plurality Justices:

…a decision will not be illogical or irrational if there is room for

a logical or rational person to reach the same decision on the

material before the decision-maker. A decision might be said to be

illogical or irrational if only one conclusion is open on the

evidence, and the decision-maker does not come to that

conclusion, or if the decision to which the decision-maker came

was simply not open on the evidence or if there is no logical

connection between the evidence and the inferences or

conclusions drawn.78

55. The High Court’s decision in SZMDS establishes that illogicality or

irrationality in the reasoning of a tribunal may constitute a basis for

judicial review, however, this ground may only succeed in a limited

range of cases.

56. In SZOOR v Minister for Immigration & Citizenship & Anor79

it was

observed that:

The approach to irrationality or illogicality dictated by the

authorities in the High Court appears to be that even if the

decision-maker’s articulation of how and why he or she went

from the facts to the decision is not rational or logical, if someone

else could have done so on the evidence, the decision is not one

that will be set aside. It is only if no decision-maker could have

followed that path, and despite the reasons given by the actual

76

SZMDS CLR at 643 per Crennan and Bell JJ; HCA at para.119 per Crennan and Bell JJ. 77

SZMDS CLR at 647-648 per Crennan and Bell JJ; HCA at para.130 per Crennan and Bell JJ. 78

SZMDS CLR at 649-650 per Crennan and Bell JJ; HCA at para.135 per Crennan and Bell JJ. 79

(2012) 202 FCR 1; [2012] FCAFC 58 (“SZOOR”).


decision-maker, that the decision will be found to have been made

by reason of a jurisdictional error.80

and further that:

… Illogicality such as to amount to jurisdictional error will not

be shown where the point is merely one upon which reasonable

minds may differ or where it cannot be said that there is no

evidence before the Tribunal upon which the decision could be

based. Illogicality will not amount to jurisdictional error in every

case. It must be such as to affect the decision….81

57. The IMR, having concluded that the applicant had not claimed to be a

Faili Kurd, assessed the applicant’s claim on the basis that he was not a

Faili Kurd. When regard is had to all of the material that was before the

IMR it can be seen that on every occasion, bar one, the applicant

asserted that he was a Faili Kurd, and that his fear of persecution arose

from his being a Faili Kurd. The only occasion on which the applicant

did not claim to be a “Faili Kurd”, but is recorded as describing his

ethnic group as “Kurd”, is in the entry interview conducted ten days

after his arrival on Christmas Island in October 2010, but at a time

when he had already, upon entry, claimed to be a Faili Kurd. Post the

entry interview recording of the applicant as being a “Kurd” there is no

instance of the applicant claiming to be a “Kurd”, and on every

instance since 31 October 2010 he has claimed to be a “Faili Kurd”. In

any event, describing oneself as a Kurd does not necessarily preclude

one from being a Faili Kurd, and the recording of what was said to be

stated at the entry interview does not amount to a claim not to be a Faili

Kurd. The claim of a well-founded fear of persecution for a Convention

reason is based on the applicant’s ethnicity, that is, that he is a Faili

Kurd. That is clear from the overwhelming preponderance of the

materials.

58. The IMR’s conclusion that the applicant “has not himself claimed to be

a Faili Kurd” is a conclusion reached in circumstances where there is

no evidence at all to support the assertion that the applicant had not

claimed to be a Faili Kurd. On every occasion but one he had claimed

to be a Faili Kurd, and on that other occasion he had claimed to be a

Kurd, a claim not necessarily inconsistent with being a Faili Kurd. The

80

SZOOR FCR at 7 per Rares J; FCAFC at para.15 per Rares J. 81

SZOOR FCR at 23 per McKerracher J; FCAFC at para.85 per McKerracher J.


applicant had never not claimed to be a Faili Kurd. At the point of

satisfaction in relation to this finding of ethnicity, which was a central

integer of the applicant’s claims, the Court is of the view that the IMR

acted irrationally or illogically, because there is no fact which supports

the IMR’s conclusion that the applicant has not claimed to be a Faili

Kurd. Moreover, because those are the circumstances, no other

decision-maker acting logically or rationally could possibly have

arrived at the same conclusion as the IMR did in this case. Given the

centrality of the applicant’s claim to be a Faili Kurd to his claim of

persecution on the basis of ethnicity as a Faili Kurd, the error is a

jurisdictional or legal error of a kind warranting the relief sought by the

applicant in this case.

59. Ground 2 is therefore made out.

Ground 3


3. The Second Respondent made an error of law in her finding

that the Applicant did not have a well-founded fear of persecution

in Iran.

Particulars

3.1 The Second Respondent’s finding that the Applicant did not

have a well-founded fear of persecution in Iran was based on a

misconstruction of the definition of “refugee” in the Refugees

Convention and was contrary to law;

3.2 The Second Respondent’s finding that the Applicant did not

have a well-founded fear of persecution in Iran was so

unreasonable that no reasonable person could have made that

finding.


61. The applicant submits as follows:

a) the applicant claims to have a fear of persecution on the basis of

race (Faili Kurd), perceived nationality (Iraqi), social group


(stateless persons in Iran) and imputed political opinion

(opposition to the Iranian regime);

b) the IMR did not expressly consider whether there was an

identifiable social group comprising stateless persons in Iran, or

whether the applicant was (rightly or wrongly) perceived in Iran

to be a member of such a group. The IMR did conclude that the

applicant had Iranian nationality and for that reason was not a

stateless person, but that is not the same issue. In any event, for

the reasons given above, that finding involved an error of law;

c) section 91R(1) of the Migration Act provides that the definition of

“refugee” does not apply in relation to persecution for a specified

reason unless that reason is the essential and significant reason for

the persecution, the persecution involves serious harm to the

person, and the persecution involves systematic and

discriminatory conduct;

d) the applicant claims that the persecution in Iran involves

systematic and discriminatory conduct. There was evidence

before the IMR to support that claim.82

The IMR did not address

that evidence, or give reasons for rejecting it. The failure to do so

gave rise to an error of law;

e) instances of serious harm are given in s.91R(2) of the Migration

Act. They include a threat to the person’s life or liberty, or

significant physical harassment or ill-treatment. They also include

significant economic hardship, denial of access to basic services,

and denial of capacity to earn a livelihood, in each case

threatening the person’s capacity to subsist;

f) there was evidence before the IMR that Faili Kurds in Iran were

the objects of persecution within the meaning of the

Convention;83

g) the IMR found that the applicant had not personally suffered

persecution;84

82

CB 151-153 154-156 at paras.39 and 41, and the January 2011 Statutory Declaration, CB 15-16 at

paras.15-20. 83

CB 148-156 at paras.33-41. 84

CB 159 and 160 at paras.50 and 56.


h) the IMR did not address the applicant’s explanation, to the effect

that this was because, as a stateless Faili Kurd, he had been very

careful and had hidden from the Basij and the police;85

i) the IMR found that the applicant had been employed by his uncle,

but had not sought other employment;86

j) the IMR did not address the applicant’s explanation,87

to the

effect that it would have been futile to do so because, as a

stateless Faili Kurd, he did not have the requisite identity

documents;

k) the IMR approached the issue on the basis that a person cannot

have a well-founded fear of persecution unless the person has

already experienced actual persecution, amounting to serious

harm; and that a person who leaves a country before experiencing

actual persecution in that country is not capable of having a well-

founded fear of being persecuted in that country. A fear of

persecution can not be well-founded, on this approach, unless the

persecution has eventuated in fact, not merely in apprehension;

l) such an approach is not supported by the Migration Act, the

Convention, or logic. It would be absurd in the case of

persecution by deprivation of life or liberty. It is an approach that

is so unreasonable that no reasonable person could have applied

it;

m) further or alternatively, the IMR did not consider whether, or

make a finding as to whether, the applicant had a fear of

persecution. This necessarily precluded a finding as to whether

such a fear was well founded;

n) by confining her consideration to the applicant’s absence of

personal persecution experiences, the IMR did not address the

relevant criteria in the definition; and

o) the IMR Recommendation was, for that further reason, not made

according to law.

85

CB 147 at para.26. 86

CB 182 at para.51. 87

CB 169 at para.21.




a) nothing in ground 3 as pleaded and developed discloses an error

of law or unreasonableness at all, let alone of a character or kind

sufficient to justify judicial review;

b) the IMR’s conclusion as to the absence of any physical harm,

harassment or threatening by the Basij or the police in Iran was

entirely open on the totality of the narrative account that had been

given by the applicant. The substance of that account focused

substantially on the detail of the applicant’s claims concerning his

limited opportunities and capacity to access employment and

other services in Iran. This meant that the IMR was entitled to

view the applicant’s overall claim for a protection visa as being

substantially one of persecution that fell short of physical harm or

detriment but was rather concerned with economic or social

disadvantage or limitation in opportunity; and

c) save for the limited reliance by the applicant on fears of being

arrested or killed were he to return to Iran, (which the IMR

correctly noted were not supported with any evidentiary content)

the burden of the claim for a protection visa was one sourced in,

essentially, economic and social discrimination. The IMR was

entitled to find that the extent of the detriment experienced by the

applicant did not amount to “serious harm” for the purposes of

s.91R of Migration Act.


63. The assertion that the IMR’s finding that the applicant did not have a

well-founded fear of persecution in Iran was based on a

misconstruction of the definition of “refugee” in the Convention and

was contrary to law cannot be made out for reasons set out above.88

64. In relation to the finding of a well-founded fear of persecution

otherwise, it is once again based on the specific ground of

88

See paras.12-15 above.


unreasonableness, and that no reasonable person could have made the

finding that the IMR made.

65. Assuming, for present purposes, that the IMR was properly considering

a relevant claim by the applicant, it must be said that the IMR was

entitled to consider past persecution in order to determine whether

there was possible future persecution. In Minister for Immigration &

Ethnic Affairs v Guo & Anor89

the High Court observed that in relation

to the predictability of future events which might give rise to a real

chance of serious harm, there would be cases where “… the probability

that an event will occur may be so low that, for practicable purposes, it

can be safely disregarded.”90

That determination requires an estimation

of the likelihood that an event will give rise to the occurrence of

conduct causing serious harm, and in that respect, regard must be had

to what has occurred in the past as a guide to what might happen in the

future.91

In Guo, the High Court observed that a well-founded fear is

one with a “real substantial basis for it”, which “may exist even though

there is far less than a 50 per cent chance that the object of the fear

will eventuate”92

and then, critically, went on to say as follows:

But no fear can be well-founded for the purpose of the

Convention unless the evidence indicates a real ground for

believing that the applicant for refugee status is at risk of

persecution.93

Thus, it was open for the IMR to make findings concerning the

applicant’s past life and treatment within Iran, particularly in relation to

his schooling and employment, as the basis for a conclusion that

economic imperatives formed the basis of the applicant’s decision to

leave Iran.94

It is also relevant to note that it is not necessarily an error

of law, or a consideration giving rise to judicial review, that an

administrative decision-maker has not addressed every aspect of the

material and evidence put before the decision-maker.

66. In this case, there is, in any event, consideration of the likelihood of

serious harm being suffered by the applicant in the future if he were to

89

(1997) 191 CLR 559 (“Guo”). 90

Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. 91




CB 159-160 at paras.53-54.


return to Iran. That occurs in relation to, specifically, his departure on a

false Iranian passport, and whether he would be punished for that on

his return to Iran, and whether he would be punished as a failed asylum

seeker. In relation to the former, the IMR concluded that he would only

be punished under laws and rules of general application (that is non-

Convention related laws) or that the punishment would not be unduly

harsh or severe in any event. There was, therefore, no Convention

nexus nor Convention related persecution. In relation to the latter the

IMR concluded that the applicant did not have a political profile which

would see him face serious harm on account of his being a returned

failed asylum seeker, notwithstanding his “Kurdish ethnicity”.95

More

generally, the IMR indicates that she has carefully examined all of the

evidence before her, and found that the applicant has never suffered

persecution in Iran, and that he does not have a well-founded fear of

suffering persecution for a Convention related reason in the reasonably

foreseeable future.96

There is, thus, an express statement by the IMR

that all of the evidence has been examined and that having examined

that evidence there is no well-founded fear of persecution in the

reasonably foreseeable future. Thus, the IMR looked both backwards

and forwards in assessing whether or not the applicant had a well-

founded fear of persecution. There is no error in such an approach.97

67. Ordinarily, therefore, the Court would conclude that this ground has

not been made out. The difficulty, however, is that notwithstanding the

reference to a careful examination of all of the evidence before the

IMR (which, at least theoretically, would include the independent

country information which referred extensively to issues associated

with Faili Kurds) the IMR has made it clear that in her view the

applicant has not claimed to be a Faili Kurd, and she has assessed his

claim as against his Kurdish ethnicity generally, and not his specific

Faili Kurdish ethnicity. That approach is confirmed by an ordinary and

plain reading of the IMR’s findings and reasons, which after finding

that the applicant did not claim to be a Faili Kurd, does not make

reference to his claim as a Faili Kurd thereafter.98

95

CB 160 at paras.57-58. 96

CB 160 at para.59. 97

Guo at 572 and 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. 98

CB 157-161 at paras.43-61.


68. It is unnecessary to ultimately determine whether this ground is, or

could be, made out. In order to do so the Court would have to make

factual findings as to the fear of persecution held by the applicant as a

Faili Kurd, and that is not the Court’s role on judicial review. And,

although the position of Faili Kurds might, on one view, not be seen to

be markedly different to that of Kurds, the factual material is not so

clear-cut as to make that finding inevitable, particularly in

circumstances where there have been no findings of fact by the IMR as

to the applicant’s claim on the basis that he is a Faili Kurd. In the

circumstances, and given that the Court has already found that the

applicant is entitled to relief on grounds 1 and 2, it is unnecessary to

determine this ground.

Ground 4

69. Ground 4 is as follows;

4. The Second Respondent made an error of law in that she took

into account irrelevant considerations in making her

recommendation that the Applicant is not a person to whom

Australia has protection obligations under the Refugees

Convention.

Particulars

4.1 Before making the recommendation, the Second Respondent

took irrelevant considerations into account including:

4.1.1 The reasons for the Applicant leaving Iran;

4.1.2 The positive experiences of the Applicant in Iran during his

childhood;

4.1.3 The positive experiences of the Applicant’s mother in Iran

during the Applicant’s childhood.


70. The applicant submits that:


a) despite the apparent finding that the applicant left Iran to avoid

his military service obligation, the IMR separately found that the

applicant left Iran on the basis of economic imperatives;99

b) this finding is not inconsistent with a fear of persecution.

Persecution can involve significant economic hardship that

threatens a person’s capacity to subsist;100

and

c) the considerations set out in the particulars above are wholly

irrelevant to the decision that had to be made by the IMR.


71. The Minister submits that the alternative grounds put as to taking into

account irrelevant considerations, or failure to take into account

relevant considerations, (grounds 4 and 5) do not justify relief under

the doctrine as explained in Minister for Aboriginal Affairs & Anor v

Peko-Wallsend Limited & Ors101

and Minister for Immigration &

Multicultural Affairs v Yusuf & Anor.102

The particulars provided in

support of each of those two grounds represent parts of the accounts

provided by the applicant, which the IMR was entitled to have regard

to (in the case of ground 4) or decline to make findings about in favour

of the applicant (in the case of ground 5).


72. Assuming for present purposes that the particulars specify

considerations, as opposed to the recitation of specific aspects of the

evidence, none of those considerations is irrelevant to the question of

whether or not the applicant was a person to whom Australia has

protection obligations under the Convention. Each of the matters was a

matter relevant to a determination by the IMR as to whether or not the

applicant had a well-founded fear of persecution in Iran in the future.

As indicated above, Guo is authority for the proposition that in

determining whether or not there is a risk of future persecution, past

events are relevant. A person’s reasons for leaving a country will

99

CB 182-183 at para.54. 100

Migration Act, s.91R(2)(d)-(f). 101

(1986) 162 CLR 24. 102

(2001) 206 CLR 323; [2001] HCA 30.


almost always be relevant to whether there is a well-founded fear of

persecution, and particularly so here where the reasons include a range

of economic and social discrimination and disadvantage as alleged by

the applicant, including discrimination and disadvantage arising from

his ethnicity. Likewise, the possibility that the applicant left to avoid

military service might be relevant to whether he has a well-founded

fear of persecution in the future, both as an indicator of a lack of any

other reason for leaving Iran (that is a lack of any other reason for a

fear of persecution), but also a possible well-founded fear of future

persecution if avoidance of military service might result in harm for a

Convention reason. Alternatively, it might constitute a lack of a basis

for a well-founded fear of persecution on the basis of a Convention

reason if any harm arose out of the application of laws of merely

general application.

73. The childhood experiences of the applicant, and the applicant’s

mother’s experiences during the applicant’s childhood, might also be

relevant to whether or not the applicant has a well-founded fear of

persecution in the future. Stability in residence, education and

employment might all be factors which suggest that the applicant has

had a life untroubled by persecution because of his ethnicity (or any

other Convention reason). Conversely, where, for example, a young

man and his parents have lived an itinerant agricultural or building

labourers life, shifting from one place to another, working or not,

without documentation, usually underpaid when working or not paid at

all, and frequently moving on as a consequence of the activities of an

opposing ethnic or religious majority, those factors, equally, might be

relevant to whether or not there was a well-founded fear of future

persecution based on the person’s, or the person’s parents, experience

during a person’s childhood. These are factual matters routinely

considered by independent merits reviewers (and the RRT) when

dealing with allegations of a well-founded fear of persecution.

74. For the above reasons the considerations set out in ground 4 were

relevant considerations, and ground 4 is not made out.

Ground 5



5. The Second Respondent made an error of law in that she failed

to take into account relevant considerations in making her

recommendation that the Applicant is not a person to whom

Australia has protection obligations under the Refugees

Convention.

Particulars

5.1 Before making the recommendation, the Second Respondent

failed to take relevant considerations into account including:

5.1.1 That the Applicant is of the race of Faili Kurd;

5.1.2 That the Applicant is, or is perceived in Iran to be, a

member of a social group comprising stateless persons in Iran;

5.1.3 That the Applicant is perceived by the authorities and

other[s] in Iran as having Iraqi nationality;

5.1.4 That the Applicant is, or will be, perceived by the authorities

and others in Iran as having anti-regime political opinions;

5.1.5 Whether the Applicant is able to return to Iran;

5.1.6 Whether the Applicant is willing to return to Iran and, if not,

whether he was unwilling owing to a well-founded fear of

persecution in Iran at the time that the recommendation was

made.



a) the IMR did not address the issue of whether the applicant was

able to avail himself of the protection of Iran, and did not make a

finding in that regard;

b) the IMR did not address the issue of whether the applicant was

willing to avail himself of the protection of Iran, and if not why

not, and did not make a finding in that regard;

c) the IMR Recommendation was, for that further reason, not made

according to law; and

d) the IMR did not address the applicant’s claims that he was

perceived in Iran to be an Iraqi, or that as a consequence of the


circumstances of his departure from Iran, he would be imputed to

have anti-regime political opinions. Failure to address those

matters arguably amounts to a failure to take relevant

considerations into account, which gives rise to an error of law.


77. The Minister submitted as follows:

a) some general observations may be made about the legitimacy

with which the IMR approached her task. The observations that

she made concerning inconsistencies and uncertainties in the

applicant’s evidence, particularly concerning matters going to his

claimed nationality and citizenship, were all within the province

of the IMR as a finder of fact, par excellence. Thus the

conclusions as to the applicant’s credibility and the resulting

finding that he is not stateless and not an Iranian citizen were

fairly open to the IMR;

b) accordingly, the application for judicial review must fail because

the rejection of the applicant’s credibility was open on all of the

evidence. Even if there were any error of law on matters ancillary

to those two core conclusions (which is denied) such an error of

law necessarily does not go to jurisdiction, nor is it one of a kind

that would justify relief under s.75(v) of the Constitution, as

applied by s.476 of the Migration Act; and

c) repeats the submissions set out at para.72 above.


78. The essence of the applicant’s claim was that he would be persecuted

in the future on the basis of his race, as a Faili Kurd, as was found by

the RSA officer. There was a clear and palpable claim of a well-

founded fear of persecution on the basis that the applicant was a Faili

Kurd. The IMR did not consider this claim, considering only the claim

based on Kurdish ethnicity, and not Faili Kurdish ethnicity, because the


IMR, wrongly and unreasonably, said that the applicant had not himself

claimed to be a Faili Kurd.103

79. The country information set out in the IMR Recommendation by the

IMR demonstrates that there is an issue, or a possible basis for

claiming, a well-founded fear of persecution on the basis of the

treatment of Faili Kurds in Iran, whether because of their ethnicity

alone, or whether because of imputed political opinion in relation to

considerations associated with the possibility of Kurdish autonomy, or

imputed anti-Iranian regime political opinions arising from issues

associated with Kurdish autonomy or the perception that Faili Kurds

are Iraqis who are opposed to the Iranian regime. Whether or not the

IMR might have arrived at the same conclusion having considered the

country information is not presently material, because the IMR failed

to consider the applicant’s claims on the basis that he was a Faili Kurd,

because it concluded, wrongly and unreasonably, that no such claim

was made.

80. That the applicant was a Faili Kurd, and made claims on that basis, was

therefore a relevant consideration to which the IMR ought to have had

regard, and failure to do so gives rise to jurisdictional error, or at least

an error of law, sufficient to warrant relief in the terms sought by the

applicant. Although the claim was not put on this basis it might have

been said, in the alternative, that the IMR failed to have regard to an

essential integer of the applicant’s claim.

81. As to the claim that the IMR failed to have regard to the fact that the

applicant might have been perceived in Iran to be a member of a social

group comprising stateless persons in Iran, the Court (giving the

findings and reasons in the IMR Recommendation a proper reading in

accordance with the High Court’s reasoning in Wu Shan Liang)

considers that the IMR did have regard to the fact that the applicant

alleged that he was “stateless”, and that he was a member of a

particular social group, namely stateless persons in Iran, those claims

being set out at the very beginning of the findings and reasons.

Moreover, the IMR went on to consider whether or not the applicant

was in fact stateless, and concluded that he was not, but rather that he

was of Iranian nationality, a finding about which the IMR considered

103

See paras.36-60 above.


there was no doubt, and, in those circumstances, no requirement arose

to consider, any further, the possibility of the applicant being

persecuted on the basis that he was a member of a social group

comprising stateless persons in Iran. Likewise, with respect to the

applicant’s perceived Iraqi nationality, that issue was subsumed by the

finding of Iranian nationality. The strength of the finding of Iranian

nationality is such that it overcomes the perception issues which might

otherwise, in the event that the IMR had some doubt about the

nationality issue, have required further consideration of the stateless

person and perceived Iraqi nationality claims. Those claims, however,

have not been made out for reasons set out immediately above.

82. As for the claims that the applicant will be perceived by the authorities

as having anti-regime political opinions, and whether he is able to

return to Iran, or whether the applicant is willing to return to Iran, and

if not whether he was unwilling owing to a well-founded fear of

persecution in Iran at the time that the IMR Recommendation was

made, those issues are (again on a proper reading in accordance with

the Wu Shan Liang principles) adequately dealt with by the IMR. In

particular, the IMR finds that the applicant is “devoid of a political

profile”104

and would be able to return to Iran, even though he risks

some punishment by reason of the application of laws of general

application for departing with a false Iranian passport,105

and likewise

that he would have no basis for a well-founded fear of persecution as a

failed asylum seeker because of his lack of a political profile and

because he had never suffered persecution in the past in Iran.106

83. In the circumstances, therefore, the applicant has made out that part of

ground 5 founded in the alleged failure of the IMR to take into account

a relevant consideration, namely the applicant’s race as a Faili Kurd

(ground 5.1.1), but otherwise ground 5 has not been made out. The

extent to which ground 5 has been made out does however justify the

relief sought by the applicant.

104

CB 160 at para.58. 105

CB 160 at para.57. 106

CB 160 at paras.57 and 58.


Ground 6

84. Ground 6, which was added at hearing, is as follows:

The applicant was denied procedural fairness in relation to the

finding by the second respondent that he had left Iran to avoid his

military service obligations.



a) the IMR said that she was not “satisfied that [the applicant] did

not leave Iran in October 2010 in order to avoid his military

service obligations”;107

b) if this be a finding it is vitiated by two errors:

i) firstly, the IMR approached the issue as if there were a

presumption that the applicant had left Iran for that reason,

and the onus was on him to rebut that presumption by

adducing evidence to prove that he did not; and

ii) secondly, although the topic of military service was

mentioned,108

this suggestion was not put to the applicant,

and he was not given an opportunity to respond to it,

although other matters were put to him,109

and it was put to

him that his only reason for leaving Iran was for economic

opportunities and a better life;110

c) the IMR therefore made a finding as to the applicant’s reason for

leaving Iran which was not put to him, and imposed a burden of

disproof on the applicant. The unfairness in doing so was

compounded by the IMR putting to the applicant a different

reason for leaving as the sole reason. This was procedurally unfair

to the applicant;111

107

CB 182 at para.52. 108

CB 169 at para.22. 109

CB 170 at para.27. 110

CB 170-171 at para.28. 111

Citing Plaintiff M61 CLR at 353-354, 355 and 356-357 per French CJ, Gummow, Hayne, Heydon,

Crennan, Kiefel and Bell JJ; HCA at paras.77-78, 85-86 and 91.


d) the IMR Recommendation was, for that further reason, not made

according to law;

e) despite the apparent finding that the applicant left Iran to avoid

his military service obligation, the IMR separately found that the

applicant left Iran on the basis of economic imperatives;112

and

f) this finding is not inconsistent with a fear of persecution.

Persecution can involve significant economic hardship that

threatens a person’s capacity to subsist.113



a) the finding of a lack of satisfaction that the applicant did not leave

Iran to avoid compulsory military service,114

did not manifest any

legal error. The finding is somewhat inelegantly expressed by

reason of the use of a double negative, but fairly construed,

consistent with the Wu Shan Liang principle, it reflects the IMR’s

application of her level of “satisfaction”. Nothing in the

surrounding language employed by the IMR invites the formation

of a presumption on this, or any other factual issue;

b) nor was there any breach of procedural fairness in the process that

preceded this finding. The applicant himself had raised before the

RSA officer his own claim that he could not obtain a genuine

passport as he had no birth certificate and did not do military

service.115

The applicant himself had acknowledged to the IMR

that if he had been an Iranian citizen he would have commenced

his military service after leaving school.116

The issue arose after

the more general, but related, subject had been canvassed about

whether members of the applicant’s family had birth certificates

issued in Iraq or Iran;117

and

112

CB 182-183 at para.54. 113

Migration Act, s.91R(2)(d)-(f). 114

CB 182 at para.52. 115

CB 84. 116

CB 169 at para.22. 117

CB 169 at para.20.


c) the answers given by the applicant on the subject were found by

the IMR to be inconsistent and formed part of the basis for the

IMR’s rejection of the overall credibility of the applicant.118

The

IMR was entitled to make such adverse findings on the general

issue of citizenship and on means of its manifestation (namely

possession of a birth certificate) and the more specific issue of

leaving Iran in order to avoid military service obligations. The

issue was not a new or fresh one on which it could be said the

applicant had no prior notice that it may be partly dispositive of

his claim. In any event, the specific finding about leaving to avoid

military service obligations was effectively subsumed by the even

more important finding about the “crux” of the applicant’s

decision to leave Iran to obtain more economic opportunities and

to have a better life.119


87. In relation to the issue of military service the IMR Recommendation

records that at the IMR Interview the IMR:

… asked the claimant to tell me at what age men in Iraq [sic –

Iran] commenced their compulsory military service in Iran. He

answered: “Eighteen”. I asked him how old he is now, and he

answered: “Nineteen”, and he agreed that he was eighteen at the

time he left school. He then acknowledged that if he had been an

Iranian citizen, he would have commenced his military service

after leaving school.120

88. When the IMR put to the applicant what her current thinking was

(something that she was not obliged to do) the IMR did not mention

that the IMR was considering making a determination, in the context of

whether the applicant had a well-founded fear of persecution, as to

whether or not the applicant left Iran in order to avoid military

service.121

89. In the IMR Recommendation’s findings and reasons the IMR found as

follows:

118

CB 169 and 180-182 at paras.20 and 47-50. 119

CB 182 at paras.52-54. 120

CB 146 at para.22. 121

CB 147 at para.27-28.


At his Refugee Status Assessment Interview, it is recorded that

the claimant told the Refugee Status Assessment Officer that he

departed from Iran on a false Iranian passport in his own name

which contained his correct birth date and his photograph. He

claimed that he could not obtain a genuine passport because he

had no birth certificate and did not do military service. At his

Independent Merits Review Interview, the claimant acknowledged

that male Iranian citizens are compelled to do military service at

eighteen years of age, and that if he had been an Iranian citizen,

he would have commenced his military service soon after

completing his twelve years of schooling in May/June 2010.

However, as noted above, the claimant departed from Iran in

October 2010, which is about the time he would have been

expected to commence his two-year compulsory military service if

he was an Iranian citizen. As I am not satisfied that the claimant

is not an Iranian citizen, neither I am satisfied that he did not

leave Iran in October 2010 in order to avoid his military service

obligations[.]122

90. It is further relevant to note that the RSA Record goes no further than

indicating that at the RSA stage the issue of military service only arose

on the applicant’s own initiative in the context of his claim that he was

a stateless person, and that if he was not a stateless person, but an

Iranian citizen, then he would have done military service.123

91. There is no evidence that either at the RSA stage, or relevantly for

these purposes, the independent merits review stage, that the question

of the applicant leaving Iran to avoid military service was put, squarely

or otherwise, to the applicant. There was an obligation to put the matter

to the applicant in such a way as to give him a sufficient opportunity to

give evidence or make submissions about an issue in respect of which

the IMR reached an adverse conclusion which was in part

determinative of the question as to whether or not the applicant held a

well-founded fear of persecution if returned to Iran.124

It is not correct,

as was asserted by the Minister, that the military service issue was

subsumed in the finding that the applicant left Iran to pursue a better

life and better economic opportunities outside Iran. A proper reading of

the findings and reasons shows that the IMR dealt discretely with the

122

CB 159 at para.52. 123

CB 84. 124

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR

152 at 165 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; [2006] HCA 63 at para.44 per

Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.


issue of military service and the issue of economic opportunity and a

better life, and reached separate conclusions with respect to each of

those matters, albeit that the conclusions were to the same effect in

terms of whether or not the discrete issues gave rise to a well-founded

fear of persecution on the part of the applicant.125

92. In the circumstances, the applicant was not given an opportunity, or

any sufficient opportunity, to deal with the allegation that he left Iran in

order to avoid his military service obligations, and that that was in part

determinative of whether or not he had a well-founded fear of

persecution if returned to Iran.

Conclusions

93. For the reasons set out above the Court has concluded that:

a) grounds 1, 2, 5.1.1 and 6 of the application have been made out;

b) grounds 4 and the remainder of ground 5 of the application have

not been made out; and

c) it is unnecessary to determine whether ground 3 has been made

out.

Relief

94. In circumstances where the Court has concluded that grounds 1, 2,

5.1.1 and 6 of the application have been made out, and as a

consequence the IMR Recommendation was not made in accordance

with the law in that:

a) the IMR failed to have regard to relevant considerations in

determining the issue of the applicant’s nationality;

b) the IMR made a determination that the applicant had not himself

claimed to be a Faili Kurd in a manner which was unreasonable;

c) the IMR failed to take into account a relevant consideration,

namely that the applicant claimed to be a Faili Kurd; and

125

CB 159-160 at paras.52 (military service) and 53-54 (economic opportunity).


d) the IMR denied the applicant procedural fairness with respect to

the question of whether or not the applicant left Iran to avoid

military service,

it is appropriate to grant declaratory and injunctive relief to the

applicant, broadly in the terms sought in the amended application.

Costs

95. The Court will hear the parties as to costs.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Date: 9 May 2013

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